2. The orders are varied to the extent of imposing a sentence on each offence of two and a half years imprisonment suspended forthwith with an operational period of 37 months, to be served concurrently.
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the appellant pleaded guilty to one count each of fraud as an employee and fraudulently making a false entry in a record – where the appellant was dealt with summarily – where the appellant was sentenced on each offence to two and a half years’ imprisonment suspended after seven months for an operational period of 37 months, to be served concurrently – where the sum involved was $44,657.45 – where the offences were committed in 2004 – where the appellant ceased employment and left Queensland before an arrest warrant was issued – where the appellant was 22 years old at the time of his offending – where he had prior convictions for petty dishonesty in Queensland – where the appellant had subsequently committed minor offences in another state which demonstrated a willingness to deceive – where the appellant established a successful business in another state –where the appellant voluntarily surrendered to the jurisdiction in 2009 after having made full restitution and in addition fully indemnifying the complainant of associated accounting and interest costs – where from 2007 the appellant had voluntarily co-operated with police authorities in another state as an informant – where his co-operation was described as substantial – where the appellant’s incarceration would result in hardship to his family – where there was evidence that the appellant suffered from a psychiatric illness surrounding the period of offending – where the magistrate did not make express reference to any reduction in sentence to reflect the appellant’s co-operation as an informant – whether the magistrate failed to take into account a material consideration in exercising his sentencing discretion – whether in all the circumstances the sentence was manifestly excessive
Criminal Code 1899 (Qld), s 408C(1)(a), s 408C(2)(b), s 441(a) (renumbered as s 430(a)), s 552B(3), s 552C(2), s 552H(1)(a)
Justices Act 1886 (Qld), s 222(2)(c), s 223(1), s 223(2), s 225(1), s 225(3)
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
BJI v NRS [2010] QDC 447
Case
[2010] QDC 447
Decision Date
CaseChat Overview and Summary
The case of BJI v NRS involved the appellant, who had pleaded guilty to fraud as an employee and fraudulently making a false entry in a record. The appellant was sentenced to two and a half years’ imprisonment suspended after seven months for an operational period of 37 months, to be served concurrently. The court was asked to determine whether the sentence was manifestly excessive or inadequate, and whether the magistrate had failed to consider certain mitigating factors.
The primary legal issue before the court was whether the sentence imposed was manifestly excessive or inadequate. The court needed to consider the totality of the circumstances, including the nature and circumstances of the offences, the appellant’s age at the time of the offending, his prior convictions, his post-offending conduct, and his voluntary surrender to authorities. The court also had to assess whether the magistrate had appropriately taken into account the appellant's cooperation with police and the potential hardship to his family if he were incarcerated.
In determining the appeal, the court found that the magistrate had not made express reference to the appellant's substantial cooperation as an informant, which was a material consideration in the sentencing process. The court also considered the appellant's voluntary surrender and the fact that he had made full restitution to the complainant, along with other mitigating factors such as the appellant's psychiatric illness surrounding the period of offending. Given these considerations, the court concluded that the sentence was manifestly excessive. Consequently, the appeal was allowed, and the orders were varied to impose a sentence on each offence of two and a half years imprisonment suspended forthwith, with an operational period of 37 months, to be served concurrently.
Orders
Orders of the court
1. Appeal allowed;
2. The orders are varied to the extent of imposing a sentence on each offence of two and a half years imprisonment suspended forthwith with an operational period of 37 months, to be served concurrently.